forfeiture of its charter and franchise by reason of the provision of the general railroad and railway law contained in chapter four hundred and ninety-three of the statutes of nineteen hundred and six which forbids such a corporation to extend its line of railroad without the authority of the General Court, or by reason of any other provision of section fortyseven of part two of said chapter.

I have the honor to acknowledge the receipt of the foregoing order, and to reply thereto as follows:

I assume that the Honorable Senate, by reference to "chapter four hundred and ninety-three of the statutes of nineteen hundred and six," intended to designate chapter 463 of the Acts of said year, which is entitled "An Act relative to railroad corporations and street railway companies," and to require my opinion upon the effect of section 47 of part II. of said chapter with reference to the present status of the Boston & Maine Railroad and of any other railroad corporation owning a railroad within the Commonwealth and consolidated with a railroad in another State.

The section referred to, St. 1906, c. 463, part II., § 47, provides that:

If a railroad corporation owning a railroad in this commonwealth and consolidated with a corporation owning a railroad in another state increases its capital stock, or the capital stock of such consolidated corporation, except as authorized by this act, without authority of the general court, or without such authority extends its line of railroad, or consolidates with any other corporation, or makes a stock dividend, the charter and franchise of such corporation shall be subject to forfeiture.

No evidence was transmitted to me by the Honorable Senate, or is officially before me, with respect to any specific act or acts of the Boston & Maine Railroad, or of any other consolidated corporation operating a railroad within the Commonwealth, except the New York, New Haven & Hartford Railroad Company, upon the legal status of which, with respect to certain provisions of the section above quoted, I have already expressed an opinion, which is before the Honorable Senate in my annual report; and I am aware of no provision of law which would

require or even authorize the Attorney-General officially to ascertain or determine the facts material and necessary to a consideration of the present inquiry, in order to perform intelligently the duty imposed upon him by the provisions of R. L., c. 7, § 7, to "give his opinion upon questions of law submitted to him by the governor and council or by either branch of the general court."

I am informed, however, that, although the question in the form submitted involves an investigation of fact with respect to the history of the several consolidated railroad corporations which operate railroads within the Commonwealth, which it is beyond the power of the Attorney-General to make, the Honorable Senate had particularly in view certain definite and specific acts of the Boston & Maine Railroad, upon the legality of which, with respect to the provisions of the statute above quoted, my opinion is desired, viz., the acquisition or control of the Concord Street Railway and the extension of its road to Manchester, the ownership and control of the Portsmouth Street Railway and the purchase of the Eastern Railroad Com

pany.

With respect to these transactions the material facts are matters of record, and are before me. The Concord Street Railway is directly owned and operated by the Concord & Montreal Railroad Company, a corporation of the State of New Hampshire, which has extended the line of such street railway to the city of Manchester. Both the original purchase and the subsequent extension were effected under and by virtue of the provisions of the general laws of the State of New Hampshire, which permit a railroad corporation to construct and operate its lines by electricity in or upon the public highways. The sections above referred to are as follows (St. (N. H.) 1895, c. 27, §§ 22 and 23):

SECTION 22. Every railroad corporation established under the laws of this state, and operating railroads therein with steam for a motive power, are hereby authorized to operate their railroads, or any part thereof, by electricity; and for the purpose of making the necessary changes from steam to electricity as motive power, every such railroad

corporation may, with the consent of the railroad commissioners, and subject to the provisions of sections seventeen and eighteen of this act, issue such an additional amount of capital stock as may be necessary to defray the expenses of making such change in motive power and equipment.

SECTION 23. If any existing steam railroad shall build extensions, branches, or additions to its lines, to be operated by electricity as the motive power, such steam railroad shall have the same right to build and operate such extensions, branches, and additions in the public highways, and be subject to all the duties, liabilities, and restrictions as to that part of said extensions, branches, and additions operated by electricity in public highways, as by the provisions of this act are conferred and imposed upon street railways in their use of public highways.

See St. (N. H.) 1903, c. 102.

The connection of the Boston & Maine Railroad with these transactions arises from the fact that it operates the Concord & Montreal Railroad Company under a lease dated June 29, 1895, and duly authorized by the Legislatures of Massachusetts and of New Hampshire, in New Hampshire by chapter 5 of the Acts of the year 1889, and in Massachusetts by St. 1893, c. 263. See St. (N. H.) 1893, c. 100; St. (N. H.) 1889, c. 146.

It appears, therefore, that the acquisition of a street railway line in Concord and the extension of such line from Concord to Manchester by the Concord & Montreal Railroad Company was an acquisition and extension by a New Hampshire corporation of its own line, duly authorized thereto by the laws of that State.

The Portsmouth Street Railway Company was constructed and is operated as a part of the Dover & Portsmouth Railroad Company, under authority of chapter 27 of the Acts of the year 1895, of New Hampshire, the general law of the State of New Hampshire, which, as before stated, permits the operation by steam roads of extensions, branches or additions to its lines operated by electricity in the public highways (see sections 22 and 23 of chapter 102 of the statutes of New Hampshire for the year 1903); and such street railway formed a part of the line of the Dover & Portsmouth Railroad Company on Jan. 1, 1900, when such company was acquired by purchase by the Boston &

Maine Railroad. This acquisition was effected under the express authority of the State of New Hampshire, given in St. 1889, c. 5, § 10, which authorized the purchase of the road, franchises and property of the Eastern Railroad Company, the Eastern Railroad in New Hampshire, the Portsmouth, Great Falls & Conway Railroad, the Portsmouth & Dover Railroad, and certain other railroads therein named. The Massachusetts authority for the purchase of the Portsmouth & Dover Railroad appears to have been conferred by St. 1891, c. 308, which in section 1 provided that:

The Boston and Maine Railroad is hereby authorized to acquire by purchase, the road, franchises and property of any railroad corporation whose road is now operated by it under lease, contract or through ownership of stock, and whether said road belongs to a corporation organized under the laws of this Commonwealth or organized under the laws of the state of Maine, the state of New Hampshire, or the state of Vermont.

Prior to the passage of this statute the relation of the Boston & Maine Railroad to the Portsmouth & Dover Railroad Company had been that of lessor to lessee. It therefore appears that the street railway in question forms a part of a railroad corporation whose property, rights and franchises are owned by the Boston & Maine Railroad; that prior to such ownership such extensions as may have been made of the lines of the Portsmouth Street Railway were extensions of the line of the Portsmouth & Dover Railroad Company; and that subsequent to such ownership there have been, as I am informed, no extensions thereof.

The acquisition of the Eastern Railroad Company, as has been stated, was authorized in New Hampshire by St. 1889, c. 5, which in section 10 authorized the Boston & Maine Railroad to acquire by purchase the road, franchises and property of the Eastern Railroad Company, and thereafter to acquire by purchase the roads, franchises and property of the Eastern Railroad of New Hampshire, the Portsmouth, Great Falls & Conway Railroad, and certain other railroads therein specified. In section 12 the Boston & Maine Railroad was further authorized

"to acquire by purchase the road, franchises and property of any railroad corporation incorporated under the laws of either the state of Massachusetts, Vermont or Maine whose road is now leased to or operated by said Boston & Maine Railroad ", a general provision identical with that contained in the Massachusetts statute of 1891, chapter 308, which has already been quoted. In Massachusetts a like permission was granted to the Boston & Maine Railroad by St. 1888, c. 250, which in section 1 provided for the acquisition of the Eastern Railroad Company, with authority subsequently to acquire by purchase the road, franchises and property of the Eastern Railroad Company of New Hampshire and of the Portsmouth, Great Falls & Conway Railroad (see St. 1890, c. 195). In accordance with the authority conferred by these statutes of Massachusetts and New Hampshire, respectively, the Boston & Maine Railroad acquired by purchase the road, franchises and property of the Eastern Railroad Company on May 9, 1890, the Eastern Railroad in New Hampshire on June 15, 1899, and the Portsmouth, Great Falls & Conway Railroad on May 9, 1890.

From these facts it is clear that the Boston & Maine Railroad has not in the specific instances discussed consolidated with any other railroad within the State of New Hampshire, and has not within that State extended its own line contrary to the prohibition of St. 1906, c. 463, part II., § 47. It must follow, therefore, that if by reason of any of these transactions the charter of the Boston & Maine Railroad has become liable to forfeiture under the provision of law already referred to, it has become liable thereto by reason of the extension of the line of the Concord & Montreal Railroad Company, a New Hampshire corporation leased by the Boston & Maine Railroad, from Concord to Manchester in the State of New Hampshire, which was duly authorized by the laws of New Hampshire. Upon this point I am constrained to say to the Honorable Senate that in my opinion the provisions of section 47 cannot be extended to include, even by implication, an extension of the lines of a New Hampshire corporation so authorized and effected.

an extension

Even if the extension under consideration were of the